The constitutional threats we face a year after 9/11

(FindLaw) --September 11 sent us into one of Dante's circles of hell, where we reside today. True, many of the good aspects of life in the United States have persisted. But a cycle of fear, threat, and distrust has become a staple in the zeitgeist.

The ultimate target of Osama bin Laden (if he is still alive) and the other al Qaeda terrorists is the United States Constitution. They seek to shake the constitutional foundations that make this society work, its free market, its free people, and its accountable government. They fervently seek the end of this shining civilization, including all of its institutions and "infidels." That is the threat from without.

We should have seen it before in the 1993 bombing of the World Trade Center, and in the attacks on our embassies and on the U.S.S. Cole. Instead, it took almost 3,000 lives lost in front of thousands of people to understand both the dogmatism of these ideologues and their target.

Meanwhile, the threat from without appears to be creating constitutional threats from within. The combination of an aggressive administration and a righteous ACLU has been toxic.

There is only one solution to these threats from within and from without.

The threat from within: The administration and the ACLU

The Bush administration has responded to 9/11 by throwing together as many schemes as it can imagine protecting the country. The administration -- including, prominently, Attorney General John Ashcroft -- has held detainees without notifying family or lawyers, instituted secret proceedings, resorted to military tribunals, and interfered in attorney-client communications. Now it also seeks to attack Iraq -- and has only recently noted, almost as an afterthought, that it will check in with Congress first.

The critics, however, can be as bad as the Administration. In response the war on terrorism, the ACLU has gone into overdrive, telling the American people that the Administration is a reincarnation of the Star Chamber, and a danger to the Constitution.

The ACLU is overreacting and in many instances, unnecessarily alarming the public. Virtually all of the Administration's actions may well be held to be entirely constitutional, depending on the exigency of the circumstances. The courts have always been willing to defer to the government when genuine risk is imminent. Constitutional flexibility is the key to our success through times of peace and times of war.

The ACLU is acting irresponsibly. Without security clearance, it cannot possibly know how imminent the threat really is. Nevertheless, it is imploring the courts to take actions that could threaten our right to life and liberty by binding the government's ability to protect us through exigent means.

The only solution: The administration must offer better, fuller justifications

The ACLU is far from the only entity at fault here, however. Better justifications from the administration would go a long way to silence administration critics -- or at least to make their claims less plausible in the public mind.

The administration must not only make the case for going after Iraq -- though it should certainly do that. It must also make the case for its domestic measures, by going to the American people and presenting what evidence it can safely release in support of its contention that the threat of terror is, in fact, imminent, and thus these measures are justified by exigency.

Americans are tough; we can handle it. In fact, we need the truth in order to make an informed judgment as to whether the administration's tactics are acceptable under perilous circumstances, or unduly threatening to the constitutional order.

It is not enough to simply proclaim that another terrorist attack is inevitable, as every major player in the administration has done over and over. That is far too abstract. Rather, the president and Homeland Security Director Tom Ridge must lay out the facts of the threat -- specifying the countries and groups we should be concerned about, and their means of attack that are both most practicable and most worrisome.

They should also, to the extent possible, disclose the underlying evidence that many in the administration have found convincing, but to which the public has not yet been privy in almost any significant degree. In short, we need to see the dossier.

The administration needs to convince the judiciary, too

When the people and the courts have more accurate knowledge about the actual threat, the administration's actions can be judged accordingly. Without such knowledge, we are all at risk from the actions of a conscientious and well-meaning but ill-informed judiciary trying to protect the Constitution.

If the judiciary is unconvinced of an actual or imminent threat, it may well rule against the administration. If so, it won't be wholly the courts' fault: The administration needs to make its case not only to the public, but also to the judges who hear its cases. And if the information is too risky to release in general, it must show the courts in camera.

The two issues are intertwined: Having withheld so much evidence from the public, will the administration be willing to release it to courts, even in secret, given the fear of leaks? The more the administration withholds, the more it faces the threat of adverse legal rulings despite what may be very genuine exigency. National security concerns are paramount, but a total blackout makes it impossible for the courts to make the adjustments to constitutional rules that are justified by the extreme dangers posed by this country's enemies. True, the Administration is between a rock and a hard place, but the only way out is to provide more information.

Without fully informing the American people, the administration is going to lose credibility -- as it has discovered with respect to its plans to attack Iraq, which are now subject to serious criticism from Congress, members of the public, and especially allies angry not to have been taken into the account. And as the administration loses credibility, the ACLU and the courts will increasingly be able to shut down its most aggressive anti-terror tactics -- even if they are entirely justified.

Remember, the boy who cried wolf was not listened to even when he later warned of a genuine and dire threat. In the fairytale, as here, a credibility loss can be fatal.

If the threat from terrorism is indeed as extreme as the Bush administration's proposed plans imply -- and it may well be -- that is all the more reason to tell the American people about it. And conversely, the failure to inform the people -- which may carry over into a loss of public trust, and consequent judicial limitations on the administration -- could be the administration's most dangerous decision so far.

Marci A. Hamilton, a FindLaw columnist, is the Paul R. Verkuil chairwoman in Public Law, Benjamin N. Cardozo School of Law.